The FISA Controversy, in tedious Question and Answer form.

I'd call it a Guide for the Perplexed, but I'm not that good.

The questions and answers are below the fold (thanks to Dan McLaughlin for a suggestion here and there). We hope that you'll find it useful, particularly if tomorrow afternoon is witness to screams and shrieks of inarticulate fury all along the sinister half of the blogosphere.

Q. What's FISA?
A. A very, very, long story involving (depending on who you ask) intelligence gathering, civil liberties, the GWOT, the imminent imposition of a fascist state upon America, and probably the relationship between the gold standard and length of women's hemlines. Suffice it to say that there's a "compromise" on telecom immunity up.

Q. Why the quotes?
A. Because it's more of a fig leaf than a compromise.
Q. A fig leaf?
A. Yes. It's like this: the telecom companies agreed to work with the federal government after 9/11 with regard to terrorist activities. Again, depending on who you ask, this either makes them loyal, patriotic American companies or accessories to war crimes. People who believe the latter are mind-numbingly eager to slap umpteen billion civil suits against the telecoms. There's already a few (class-action suits without actual people who have been harmed, but when has that ever stopped a trial lawyer?), but they want more.

Q. Why?
A. So that they can do discovery.
Q. Sorry?
A. Fishing expeditions?

Q. Still not getting it.
A. They want an excuse to go through the records, see if there's anything or anyone that can be pushed on, and then go after them.

Q. Sounds faintly silly.
A. Tell that to Martha Stewart and/or Scooter Libby, both of whom were convicted of perjury charges arising from being investigated for crimes that they did not, in fact, commit.

Q. That's a... different version than what I remember seeing on TV...
A. Of course it is: but substitute "Bill Clinton" if it'll make you feel better. Anyway, the telecoms would like immunity from these suits.
Q. And this bill gives it to them?
A. Effectively, yes. What happens is that the Attorney General will go to the District Court where the suit would be taking place and provide proof that the telecoms were acting at the request of the government, and in good faith. That will indemnify the telecoms from prosecution, unless it can be shown that there is "substantial evidence" that the AG's documentation is flawed. This is a change from needing to demonstrate "abuse of discretion" by the AG.
Q. In English?
A. The AG shows the court that the telecoms did what the government asked them to do. Unless somebody can show that they actually didn't, the telecoms are off the hook. And if the AG merely exceeded his authority, it's not the telecom's fault. And the plaintiffs don't even get to examine what the AG files; only the judge does. So no discovery, no civil suits, have a nice day.
Q. How was this a compromise?
A. At first this was supposed to be the responsibility of the special FISA court set up for this purpose. That was itself a compromise - an actual one - from the default assumption that immunity was simply assured.

Q. Then what's the difference between going through the FISA court, and going through the district courts?
A. Effectively? There isn't one.
Q. What about in the future?
A. This is going to be under federal jurisdiction, so once the existing cases are disposed of any future ones will go to the appropriate federal district court. Same rules.

Q. Is the ACLU going to freak?
A. The ACLU is going to freak. There may be actual aneurysms involved.

Q. So it'll get thrown out as unconstitutional, then?
A. Probably not.

Q. Why not?
A. Because the ACLU freaking out is part of the natural order of things, much like their habit of declaring any government initiative that they don't like to be unconstitutional. Also, it's not that easy to find something in the Constitution that says you can file class actions against the phone company.

Q. Is this actually going to, you know, pass?
A. There's an excellent chance of precisely that happening.

Q. Won't the Senate filibuster it?
A. This is actually slightly worse than the original Bond/Rockefeller Senate bill, which passed with a filibuster-proof majority. So, no, the Senate won't filibuster it.

Q. Well, what about the House?
A. Steny Hoyer, House Majority Leader - and not-insane when it comes to natsec issues - is ramrod for the bill going through right now. He's clearly for it, and based on the moderate Blue Dogs (Democrats who get nervous around progressives, particularly when they're talking) who have supported telecom immunity, he's got a majority. House Republicans will lockstep this one; Hoyer is probably hoping for some Democratic pickups. Essentially, anybody who isn't a member of the progressive caucus is going to be a potential supporter of this bill.

Q. What about Speaker Pelosi?
A. Hoyer got this bill through the Rules Committee. This committee is the personal property of the Speaker of the House: she can stack the membership however she likes, without input from anybody. In other words, no legislation gets through there against her will. The fact that it has means that she's at worst sitting this one out.

Q. OK, what about Senator Barack Obama?
A. What about him?
Q. Won't he go up against this?
A. Probably, but he's the junior Senator from Illinois, he doesn't actually have any power worth mentioning in the Senate (besides being the assumed Democratic nominee) - and, most importantly, this passing may be worth being able to squeeze a few more fundraising dollars out of the netroots later, so he'll probably repeat a pretty speech, and maybe vote against the bill. If he makes it back in time.

Q. So it'll pass?
A. As I said, there's an excellent chance of that happening. You never know until it happens, though.
Q. So if it passes, who gets the shaft?
A. Nobody who matters.
Q. What about all those Democratic activists who are up in arms about this?
A. Since when do they matter?

Well, in a nutshell, the stall on FISA reform made it much harder to quickly prosecute NEW signals intelligence targets. Our spooks could still go after promising new targets---IF they were able to show enough probable cause. IF they could convince the judge that the new targets we wanted to monitor were likely to be bad guys. I.e., we made the intelligence community satisfy legal standards of proof before we let them prosecute new communications targets.

That undoubtedly threw a monkey wrench in the SIGINT works. Most likely, it made our intelligence agencies less nimble and more hesitant. (Would YOU want to be the NSA watch officer compelled to come to Capitol Hill and convince Henry Waxman that you were indeed innocent? Especially if Henry had absolutely no interest in you being found innocent?*)

Less nimble intelligence agencies are less effective agencies. They collect fewer dots, which they can then connect to ID patterns and stop future 9/11s.

Q: I still don't see how that means that some people might be less safe because we didn't fix FISA before now.

A: We can't stop terrorists before they act, if we can't find them. The stall on FISA makes it more likely that there are some terrorists we won't find in time.

Q: So...some of us could be dead men walking?

A: Yes...although I don't think Nancy Pelosi would call you that.

Q: What would she call us?

A: Expendable.

* I use the phrase "found innocent" deliberately. No one goes before Henry Waxman, or any other Pelosi House Dem committe chairman, with the presumption of innocence. You are deemed guilty, unless you can convince the committee otherwise. Of course, if the committee needs a scalp, for whatever reason, you're out of luck no matter what the facts really are.

"Who will stand/On either hand/And guard this bridge with me?" (Macaulay)

But, I don't see how this bald attempt by Team Pelosi to expose our telecomms to legal penalty for doing their patriotic duty could NOT have made our intel agencies less hesitant to pursue new targets. Or, NOT made our international partners doubt whether the US had the common sense necessary to do what it takes to defend itself.

No nation with common sense willingly runs the risk of harming itself or its citizens by exposing itself to more danger.

Unfortunately, we'll never know what intel we missed out on.

(Or, it's possible I've misunderstood your post entirely. I AM still on Cup Of Life #1 for the day).

"Who will stand/On either hand/And guard this bridge with me?" (Macaulay)